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Fordham International Law Journal

Volume18, Issue4 1994 Article1

Refugees and Their Human Rights

Louis Henkin

Copyright c1994 by the authors. Fordham International Law Journalis produced by The Berke-

ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj


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Refugees and Their Human Rights

Louis Henkin

Abstract

This Introduction discusses the state of refugees in international law.


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INTRODUCTION

REFUGEES

ND

THEIR

HUM N

RIGHTS

Louis Henkin

We

live in the age of

human

rights.

In half a century

we

have

moved from

acceptance

of the idea and commitment to its

realization,

to

universal

declaration and definition, to covenants

and conventions, to established

institutions,

even to collective

humanitarian

intervention

in response

to

gross

violations.

If

the

condition

of human

rights

in most

countries

remains

always

less

than

cheering, often

deplorable, it is not because the

world dis-

claims

responsibility:

the

human

rights

of

every

human

being

everywhere

are

now

everybody s

business.

Ours is

also

the age of

refugees,

alas. Refugees

require addi-

tional

rights,

and

greater

respect

for

their

human rights. In

fact,

refugees enjoy

fewer

rights

and the human

rights

condition of

refugees

is deplorable, often horrendous.

The

Universal Declaration

of Human Rights

recognizes:

Everyone

has

the right to seek and to

enjoy in other countries

asylum

from persecution.

But

everyone s

right

is

only a

right

to

seek

asylum, and to enjoy it

if it

is granted;

there

is

no

right to

be

granted asylum; there

is

no obligation on

any

state to

grant

it.

And the

right recognized by

the

Declaration

is

only

a right

to seek asylum from

oppression, not

a right

to

seek

and enjoy

refuge from grinding

poverty, from civil war, from natural

disas-

ters.

The International Covenant on Civil

and Political Rights

recognizes the

right of everyone to leave

any

country; there is no

recognized

right

to

be

admitted

to any

country

(other

than one s

own).

The victim of

repression,

then,

has

only half a

right

a

right to leave, not

a

right to be received,

to

enjoy

a

haven

or

to

resettle.

Of

course,

the

refugee from

oppression, from

war,

from floods

and earthquakes is

human, and the International

Covenant

requires that every state respect

and ensure

the

University Professor Emeritus

Columbia

University.

1079


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1 8

FORDHAM 7VTERNATIONALLAWJOURNAL

[Vol.

18:1079

human

rights

of all

persons

subject

to

its

jurisdiction.

A

state

must

respect

and

ensure

the

human

rights

of

refugees

who come

within

its

jurisdiction

or whom

the

state

brings

within

itsjurisdic-

tion.

States, even states

that

respect

human

rights

of

those

per-

manently

within

its

jurisdiction,

have not

done

well

by refugees

who

sneak

or

stream

into

their

territory,

or

who are

on ships

that

their

navies

interdict.

A

bright

spot in

international

refugee

law

is the Convention

on

the

status of

Refugees

and

its Protocol.

The

Convention

and

the

Protocol

do

not

promise

much.

They

promise

some

eco-

nomic

and social

benefits

to some

victims

from

oppression,

and

only

to

those

whom

states

had

agreed

to

admit.

They

do

not

promise

asylum,

or

even temporary

haven,

even to

refugees

as

defined.

Only

one

small

section, a

kind

of

postscript, almost

an

afterthought,

promised

non-refoulement,

not to

return

refu-

gees

into

the

hands

of

their oppressors.

From

that little

acorn has

grown

the

modern

law

of asylum

for refugees,

tended

by

the

heroes

of

that

development,

Com-

missioner

Ogata

and her

predecessors

and their colleagues

in

the

U.N.

High Commission

for

Refugees.

It

is

a sturdy

growth.

But

it is

not

sturdy

enough.

The

Refugee

Convention,

even with

its

non r foul m nt

clause,

comes

from

the

time when

there

was

little

refugee

law

and

that little

was

a small

concession

by compassionate

states

ad-

dicted

to

and fearful

for

their

sovereignty.

It

is

of

the time

when

human

rights

law

itself

was in

its

infancy,

and

the iota

of

refugee

law

was

not

part of

that

human

rights

law

Since

then,

human

rights

law

has

moved

from

a

declaration

of

principles

to

binding

covenants

and

conventions,

to

political

concern

such

as

that

which

brought

down

apartheid

o

Security Council

sanctions

in response

to

ethnic

cleansing

and

Security

Council

decisions

authorizing

the

use of

force

to

restore

democracy

in

Haiti.

It

is

time to

bring the

international

law

of

refugees

and

the

international

law

of

human

rights

together. It

is

time

for

the

international

community

to

respond

to

the

plight

of

refugees

not

only from

tired compassion

but from

political

responsibility;

to recognize

that

massive

flows

of

refugees

result from

massive

human

rights

violations.

They

result from

the failure

of

the in-

ternational

system

to prevent,

deter,

or

terminate

gross violation;

from failure

to

hold

governments

that are

guilty

of gross

viola-


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995 REFUGEES

ND

HUM N

RIGHTS

8

tions responsible for the

floods

of

refugees

they

unleash;

from

failure to assume political responsibility

for

refugee

situations

that threaten international

peace and security; from

failure to

assume political responsibility to

prevent

violations

that

unleash

refugee

floods

and collective

responsibility

to guarantee

reme-

dies including

temporary protection or

resettlement.

In sum and in

a

few words:

Not only

compassion

but re-

sponsibility; not only individual state

responsibility but collective

responsibility;

not only the Refugee Convention

but the Interna-

tional Covenants

and the U.N.

Charter;

not

only

UNHCR but

the Human Rights Committee

and if necessary the U.N.

Secur-

ty Council.

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